The applicant was a Somali national, recognised as a refugee in Ireland, who applied for family reunification with his mother, wife, daughter, two sisters and two brothers under s. 18(4) of the Refugee Act 1996, which provides:-
“(a) The Minister may, at his or her discretion, grant permission to a dependent member of the family of a refugee to enter and reside in the State and such member shall be entitled to the rights and privileges specified in section 3 for such period as the refugee is entitled to remain in the State.
(b) In paragraph (a), ‘dependent member of the family’, in relation to a refugee, means any grandparent, parent, brother, sister, child, grandchild, ward or guardian of the refugee who is dependent on the refugee or is suffering from a mental or physical disability to such extent that it is not reasonable for him or her to maintain himself or herself fully.”
In support of his application, he submitted details of financial transfers from him to his family. The Minister for Justice refused his application. The Minister’s decision accepted that the family members were financially dependent on him and that his mother was suffering from a physical disability to such an extent that it was not reasonable for her to maintain herself fully. In his discretion, however, he decided to refuse the application. Regard was had to the lawful operation of immigration control, the impact of granting the application on the economic well-being of the country, in that the family would likely become a burden on the State, and the health and welfare systems of the State. The applicant challenged the decision by way of judicial review.
The applicant complained, first, that the Minister had exceeded the discretion under s.18(4)(a) of the Act of 1996. He contended that once the Minister accepted that externally located family members were dependents, then unless there were reasons of national security or public policy (“ordre public”) the Minister was required to grant leave to enter. The court disagreed, holding that to accept the applicant’s argument would effectively entail it inserting words into the statute, which was not a permissible course of action.
Secondly, he argued that the proper construction of the legislative provision precluded the likelihood of recourse to social welfare support as a reason to refuse an application. It was contended, in effect, that the question of dependency could only be addressed once. Once it was accepted that dependency existed, the Minister was precluded from using that criterion to decide to refuse entry in the exercise of his discretion.
In seeking to identify the legislative intention, the court applied previous High Court caselaw and held that s.18 was enacted in the interests of facilitating the reception of refugees and ensuring their personal well-being while in the State. Family reunification was, it held, available where dependency or disability is established so as to facilitate the discharge of moral obligations on the part of the applicant for family reunification, which could not be fulfilled without the presence of the family members in the State.
It held, in consequence, that the often exclusive focus on whether or not there was financial dependence between the applicant and the overseas family members was misplaced, as to refuse on the basis that there was no such dependence would fail to fulfil the legislative objective. Moreover, it held that, properly interpreted, the use of the discretionary power in s. 18(4) of the Act of 1996 to exclude dependents who would need state assistance was an arbitrary use of power. It therefore held that the Minister was not entitled to refuse entry to the State to qualifying dependent family members of a refugee because of the likelihood that such persons would be dependent on the State for material support.
The applicant also argued that the Minister had failed properly to consider the family rights of the applicant under the Constitution, pointing out that the decision had restricted itself to a consideration of his rights under article 8 ECHR. The Minister contended that that was sufficient to encompass constitutional rights and that there was no need to mention them expressly. The court agreed with the argument of the Minister.
The applicant argued that the Minister had carried out an inadequate assessment of the proportionality of the refusal on his family rights.
The court noted that two main reasons were stated for the refusal, the first of which of which was the requirements of the lawful operation of the State’s immigration system, the second being the need to ensure the economic well-being of the country, given the current economic climate and the likelihood that the subjects of the application would become a burden on the State. As to the first reason, the court held that, that when assessing a family reunification request under s. 18(4) of the Act of 1996 which involved balancing family rights and State rights, a statement to the effect that family reunification was refused because the State is entitled to refuse it by reference to that consideration was neither a proper reason nor an adequate proportionality exercise. It also rejected the second reason, holding that the real interests and particular circumstances of the sponsor refugee had not been properly weighed, much less identified, nor had any consideration been given to the question of how long the family might need State supports.
Finally, the court struck down as unlawful the manner in which the Minister had assessed the question of whether or not his refusal of the application would interfere with the right to respect for private and family life under article 8 ECHR. The Minister had held that any interference caused by the refusal with the applicant’s right to family life would not have consequences of such gravity as to constitute a violation of article 8 ECHR. The court held that that conclusion could only be reached if the nature of the dependency had been fully described, instead of being limited to financial dependency.
The court therefore quashed the Minister’s decision.